R v Low - [2001] QCA 67

[2001] QCA 67

COURT OF APPEAL

McMURDO P
WILLIAMS JA
WILSON J

CA No 225 of 2000

THE QUEEN

FRANK RICHARD LOW

BRISBANE

..DATE 01/03/2001

JUDGMENT

THE PRESIDENT: The applicant was convicted in the District Court at Brisbane on 10 August 2000 of three counts of dishonestly obtaining property with a circumstance of aggravation and eight counts of passing a valueless cheque.
He was sentenced to an effective overall term of three and a half years' imprisonment with a recommendation that he be considered for parole after serving 15 months' imprisonment.

The applicant was 50 years old at the time of sentence and 47 or 48 at the time of the offences. He had a relevant criminal history. In 1978 he was convicted and fined $150 in the Redfern Court of Petty Sessions for charges of forgery and uttering. The next day he was convicted and fined $75 and ordered to pay $300 compensation for embezzlement in Kempsey Court of Petty Sessions.

More significantly, on 29 January 1993 he was sentenced to two years' imprisonment with a recommendation for parole after serving four months together with a recommendation that whilst in prison and on parole he continue to receive treatment and counselling for his gambling problem and financial management.

The last mentioned offences involved the dishonest appropriation of $14,000 from his employer. Material was tendered from psychiatrist, Dr Mulholland, which indicated the applicant had a problem managing money for which he was then getting professional assistance.

The circumstances of these offences are as follows. The first complainant, an acquaintance of the applicant, agreed to invest $6,000 with him to facilitate a venture to export shipping containers. The complainant was to receive $1,800 profit categorised as an interest payment on the $6,000 investment.

The complainant paid the $6,000 in early December 1997 and received $1,800 profit. He then invested a further $3,000 of which he was to receive a further profit of $2,700 in a second venture relating to the importation and sale of second-hand tyres for motor vehicles.

The complainant then agreed to invest $17,500 with a guaranteed return of $5,000 in a scheme for retreading and selling second-hand tyres. As the complainant had not been paid the $2,700 profit on the second venture he advanced only $14,800.

Later in 1998 the complainant entered into a fourth agreement to invest $7,000. The $5,000 profit from the third venture was taken into account so that only $2,000 was invested for a promised return of $3,500. The complainant by then had provided $25,800 to the applicant.

The applicant later repaid $3,000. After being pressed for repayment he forwarded a further $10,300. The complainant was returned, in total, $15,100 and was out of pocket $10,700.

In September 1998 a second complainant agreed to invest money with the applicant to export scrap metal to China. This complainant invested $48,000 with profits to be split 60/40 between the complainant and the applicant.

The complainant expected a return of about $10,800 on this investment. This…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Low

Details

AGLC: R v Low [2001] QCA 67
Case: [2001] QCA 67
Decision Date: 01/03/2001

CaseChat Overview and Summary

Frank Richard Low was convicted by the District Court at Brisbane of three counts of dishonestly obtaining property with a circumstance of aggravation and eight counts of passing a valueless cheque. The applicant was sentenced to an effective overall term of three and a half years' imprisonment with a recommendation that he be considered for parole after serving 15 months' imprisonment. The applicant appealed against the sentence, arguing that the sentencing judge did not give enough weight to his efforts at and prospects of reform.

The central legal issue in this appeal was whether the sentencing judge gave adequate consideration to the mitigating factors, including the applicant's efforts at rehabilitation and prospects of reform, in determining the sentence. The applicant argued that he had taken steps to rehabilitate himself from his gambling addiction and that he had a reasonable prospect of reform. The prosecution, on the other hand, argued that the sentence imposed was appropriate given the seriousness of the offences and the applicant's criminal history.

The Court of Appeal found that the sentence imposed by the sentencing judge was not manifestly excessive and adequately recognised the mitigating factors in this case. The Court noted that the applicant had a criminal history for similar offences and that a substantial sum of money was involved in the offences. The Court also noted that the applicant had pleaded guilty and was cooperative with the authorities. The Court of Appeal concluded that the sentence imposed was appropriate and refused the applicant's application for leave to appeal against sentence.

Orders